State v. Thomas

• Court: Superior Court of Delaware
• Decided: April 15, 2024
• Docket: 2205007535
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) Case No. 2205007535 ) ) ) TERRY THOMAS, ) ) Defendant. )

Submitted: February 27, 2024 Decided: April 3, 2024 Written Decision Issued: April 15, 2024

MEMORANDUM OPINION AND ORDER

Upon Defendant’s Motion to Dismiss/Speedy Trial; DENIED.

Sehr Rana, Esq., of the Delaware Department of Justice, Attorney for Plaintiff.

Terry Thomas, Self-Represented Defendant.

WINSTON, J. I. INTRODUCTION

Defendant Terry Thomas moves to dismiss all charges against him for

violation of his right to a speedy trial under the Sixth Amendment to the United

States Constitution and Article 1, Section 7 of the Delaware Constitution. The State

alleges the delay is attributable to both parties. For the following reasons, Mr.

Thomas’s motion is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Thomas was arrested May 16, 2022, then indicted August 29, 2022, on

the following charges: two counts of Possession or Control of a Firearm by a Person

Prohibited, Possession or Control of Ammunition by a Person Prohibited, three

counts of Drug Dealing, Drug Possession, two counts of Possession of a Firearm

During the Commission of a Felony, and Possession of Drug Paraphernalia.1

The Scheduling Order in this case was first issued on December 20, 2022,

which established the following deadlines: First Case Review: January 9, 2023, Final

Case Review: February 27, 2023, and Trial: March 13, 2023.2 The same day the

Scheduling Order was issued, the State filed a continuance request due to

unavailability of the State’s witness for the March 13, 2023 trial date.3 This witness

1 See Docket Item (“D.I. __”) 3. 2 D.I. 12. 3 Id. 2 was on administrative leave and unable to testify.4 No objection was filed. The

Court approved the request, and the trial was rescheduled for June 12, 2023.5

On May 25, 2023, the State filed a trial continuance request because one of its

witnesses was unavailable due to an extended leave for personal reasons.6 This leave

extended through August 2023.7 The Court approved the request, and trial was

rescheduled for June 20, 2023.8 After the new Scheduling Order was issued, State’s

Attorney informed the Court of the unavailability of the same witness for the June

20, 2023 trial date.9 As a result, a new Scheduling Order was issued with a trial date

of September 5, 2023.10 No objection was filed.

On August 24, 2023, a continuance was requested on behalf of Mr. Thomas

by an appointed attorney from the Office of Defense Services11 due to Mr. Thomas’s

prior attorney withdrawing as counsel.12 The Court approved the request, and trial

was rescheduled for October 30, 2023.13 On September 21, 2023, the State filed a

continuance request due to the unavailability of two of its witnesses, one was

4 D.I. 65 ¶ 7. 5 D.I. 13. 6 D.I. 17 and 65 ¶ 10. 7 Id. ¶ 12. 8 D.I. 18. 9 D.I. 65 ¶ 12. 10 D.I. 19. 11 D.I. 23. 12 D.I. 22. 13 D.I. 24. 3 unavailable due to a planned vacation.14 The State contends Mr. Thomas’s then-

counsel objected to the State’s continuance request.15 The Court, however, approved

the request, and trial was rescheduled for November 13, 2023.16

On October 16, 2023, Mr. Thomas sought to represent himself which the

Court granted at his final case review.17 Three days later, Mr. Thomas filed his

second continuance request.18 The Court approved the request, and trial was

rescheduled for January 16, 2024.19 On December 7, 2023, the State filed a

continuance request because one of its witness’s was scheduled for surgery.20

Mr. Thomas objected to the State’s continuance request.21 The Court

approved the request, and trial was rescheduled for April 15, 2024. 22 On January 5,

2024, Mr. Thomas filed this Motion to Dismiss (“Motion”).23 Although, Mr.

Thomas initially objected to the State’s last two continuance requests, he proceeded

seek his own continuance and file several pretrial motions and addendums.24

14 D.I. 26-27 and 65 ¶ 17. 15 Id. 16 D.I. 28. 17 D.I. 30. 18 D.I. 34. 19 D.I. 42. 20 D.I. 52 and 65 ¶ 23. 21 D.I. 54. 22 D.I. 60. 23 D.I. 61. 24 D.I. 55-58, 61-62, 73-75, 78 and 80. 4 III. STANDARD OF REVIEW

The Sixth Amendment to the Constitution of the United States provides: “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial . . . .”25 The Delaware State Constitution provides a nearly identical right.26 A

defendant’s speedy trial right attaches upon the date of his arrest or indictment,

whichever occurs first.27 To determine whether a defendant has been deprived of

his right to a speedy trial, four factors must be considered: (1) the length of delay;

(2) the reason for delay; (3) the defendant’s assertion of his right; and (4) the

prejudice to the defendant (the “Barker factors”).28 No individual factor is

conclusive.29 Instead, the four factors are related “and must be considered together

with such other circumstances as may be relevant.”30 Thus, in weighing the factors,

courts must engage in a “difficult and sensitive balancing process,”31 weighing “the

conduct of both the prosecution and the defendant.”32 The Court will examine each

25 U.S. CONST. amend. VI. 26 DEL. CONST. art. I, § 7 (“In all criminal prosecutions, the accused hath a right ... to have ... a speedy and public trial....”). 27 Brodie v. State, 2009 WL 188855, at *3 (Del. Jan. 26, 2009) (quoting Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002)). 28 Barker v. Wingo, 407 U.S. 514, 530 (1972). 29 Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citing Barker, 407 U.S. at 533). 30 Id. 31 Barker, 407 U.S. at 533. 32 Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citing Barker, 407 U.S. at 530). 5 factor in turn.

IV. ANALYSIS

A. Length of Delay

Mr. Thomas contends that the “unnecessary delays” in this matter have

violated his constitutional right to a speedy trial.33 Due to these delays, Mr. Thomas

asserts the only proper remedy for this violation is to completely dismiss all charges

against him. The Delaware Supreme Court has previously held “if the delay between

arrest or indictment and trial approaches [or surpasses] one year, [then] the Court

will generally consider the [additional] factors.”34

Mr. Thomas was arrested on May 16, 2022. Due to scheduling conflicts with

the State’s witnesses and two continuance requests filed by the defense, trial has

been continued to April 15, 2024. The State has conceded that the length of the

delay is presumptively prejudicial because it surpasses one year. Accordingly, this

factor weighs in favor of Mr. Thomas and this Court will consider the remaining

Barker factors.

B. Reason for the Delay

The Delaware Supreme Court has stated that “different weights are assigned

to different reasons for the delay.”35 “A deliberate attempt to delay the trial in order

33 D.I. 61, Letter from T. Thomas to S. Rana, Esq., dated Dec. 22, 2023. 34 Cooper v. State, 2011 WL 6039613, at *7 (Del. 2011). 35 Middlebrook v. State, 802 A.2d 268, 274 (Del. 2022); See also, Barker v. Wingo, 6 to hamper the defense should be weighted heavily against the government.” More

neutral reasons should be weighted less heavily, but still considered since the

ultimate responsibility for such circumstances must rest with the government.36 A

valid reason, such as the disappearance or illness of an important witness, or an event

over which the prosecution has no control supports an appropriate rescheduling of

the proceedings.37

In the present case, the first four delays were the result of unavailable State

witnesses.38 There was a three-month lapse between the first scheduled trial date

and the second, then an eight-day lapse between the second scheduled trial date and

the third. There was an almost three-month lapse between the third scheduled trial

date and the fourth. These delays are events over which the State had no control and

support an appropriate rescheduling of the proceeding. The fifth continuance was

requested on behalf of Mr. Thomas due to a substitution of counsel. This delay is

attributable to Mr. Thomas. The trial was rescheduled for October 30, 2023, which

was an almost two-month delay between the fourth and fifth scheduled trial dates.

The sixth continuance was the result of an unavailable State witness to which Mr.

Thomas objected. The unavailability of a witness supports an appropriate

407 U.S. 514, 531 (1972). 36 See Barker, 407 U.S. at 531. 37 Key v. State, 463 A.2d 633, 636 (Del. 1983). 38 D.I. 12 and 17-19. 7 rescheduling of the proceedings. There was a two-week lapse between the fifth and

sixth scheduled trial dates. The two-month lapse between the sixth and seventh

scheduled trial date is attributable to Mr. Thomas, where the seventh continuance

request was sought by Mr. Thomas on October 19, 2023. The eighth continuance

was the result of an unavailable State witness and is attributable to the State. 39 Mr.

Thomas objected to this delay. After a three-month lapse, the eighth and final

scheduled trial date was set for April 15, 2024.

There were eight continuances granted in this matter. Six of these delays were

sought by to the State, however, there was no attempt by the State to hamper Mr.

Thomas’s defense through deliberate delay. Postponements due to surgery,

administrative leave, personal leave, and vacation are considered “event[s] over

which the prosecution has no control.”40 Additionally, Mr. Thomas filed multiple

motions before and after objecting to the State’s final continuance request. By doing

so, he benefits from the delay of which he complains. Therefore, this Barker factor

does not weigh in favor of the State, nor Mr. Thomas. This factor is equally weighted

and therefore, neutral.

C. Assertion of the Right to a Speedy Trial

The Delaware Supreme Court has explained that the defendant’s assertion of

39 When granting the State’s request, the Court deemed this continuance request weighed against the State. 40 Key v. State, 463 A.2d at 636. 8 his speedy trial right is entitled to strong evidentiary weight in determining whether

the defendant is being deprived of the right.41 “If and when a defendant asserts his

rights are factors of considerable significance in determining whether there has been

a speedy trial violation.”42

Mr. Thomas did not assert his right to a speedy trial until he filed the current

Motion on January 5, 2024. This Motion was filed twenty months after Mr.

Thomas’s initial arrest and almost three months before the currently scheduled trial

date. While Mr. Thomas was not silent on his desire for a trial prior to January 5,

2024, he only objected to two of the State’s eight continuance requests and did not

raise the specific issue of a speedy trial violation.43 Notably, by requesting two

continuances, one in August 2023 and another in October 2023, and filing several

pretrial motions before and after the contested delays, Mr. Thomas benefits from the

delay of his trial. Thus, the Court finds the third Barker factor to weigh in favor of

the State.

D. Prejudice Resulting to the Defendant from the Delay

The fourth factor is prejudice to the defendant. This factor is assessed in light

41 Id. 42 Middlebrook v. State, 802 A.2d at 275 (citing Bailey v. State, 521 A.2d 1075 (Del. 1987). 43 Mr. Thomas contends he made requests to each of his attorneys to assert his speedy trial rights, to no avail. D.I. 61.

9 of the protected interests of: (i) preventing oppressive pretrial incarceration; (ii)

minimizing anxiety and concern of the accused; and (iii) limiting the possibility that

the defense will be impaired. 44 The most serious of these interests being the last,

“because the inability of a defendant adequately to prepare his case skews the

fairness of the entire system.”45

Mr. Thomas asserts the “unnecessary delays” in his case equate to

fundamental prejudice and violates his right to a speedy trial. 46 Mr. Thomas

contends his pretrial incarceration has affected himself and his family, mentioning

the loss of his business and the emotional and financial burden placed on his family

due to his extended pretrial incarceration.47 In Barker, the Supreme Court explains

time spent in jail awaiting trial often means job loss, disruption of family life, and

enforced idleness.48 In addition, Mr. Thomas contends the delay has caused him to

lose contact with several witnesses, which has impaired his defense. Aside from

Sabrina Politakis, Mr. Thomas fails to explain with specificity, “who these witnesses

[a]re and why they [a]re key.”49 As to Ms. Politakis, Mr. Thomas did not lose contact

with her due to time passing and continuance delays. When Ms. Politakis was

44 Barker, 407 U.S. at 532. 45 Id. 46 D.I. 61. 47 Id. 48 Barker, 407 U.S. at 532. 49 Benson v. State, 2020 WL 6554928, at *5 (Del. Nov. 6, 2020). 10 sentenced by this Court for providing a false statement relating to the firearms found

in Mr. Thomas’s house, the Court ordered Ms. Politakis to have no contact with Mr.

Thomas.50 Lastly, Mr. Thomas argues that due to the delays, his memories about his

arrest are beginning to fade.51 In State v. Sego, this Court agreed that while memories

fade over time, the passage of two years is not enough time to prejudice a defense.52

Mr. Thomas has failed to show the delays prejudiced his defense. Therefore, this

last factor weighs in favor of the State.

V. Conclusion

After carefully analyzing and balancing the Barker factors, the Court finds,

Mr. Thomas’s right to a speedy trial has not been violated. Although the first factor

weighs in Mr. Thomas’s favor, the remaining factors are either neutral or weigh in

the State’s favor. Importantly, there was no deliberate attempt to delay trial in order

to hamper the defense. Mr. Thomas’s Motion to Dismiss for lack of a speedy trial

is therefore DENIED.

IT IS SO ORDERED.

/s/ Patricia A. Winston Patricia A. Winston, Judge

50 See State v. Politakis Sentence Order, Case No N22C-05-011893. 51 D.I. 61. 52 State v. Sego, 2016 WL 4251152, at *3 (Del. Super. Aug. 10, 2016). 11